The First Amendment protects a wide swath of expression that many of us may find offensive, distasteful or even repugnant. The government cannot silence and punish speakers just because it dislikes their expression. Oftentimes, the First Amendment protects the flag-burner, the tobacco advertiser, the pornographer and the hateful speaker.

However, First Amendment jurisprudence has never provided absolute protection to all forms of speech. There are several unprotected categories of expression, including but not limited to fighting words, obscenity, extortion, perjury and false advertising. Another unprotected category is the true threat. The First Amendment does not give a person the right to walk up to someone else and say “I am going to kill you” or to announce in an airport, “I am going to bomb this plane.”

Yet the line between protected expression and an unprotected true threat is often hazy and uncertain. What if a speaker makes a seemingly threatening statement about a political figure through the use of hyperbole? What if a student says that if he receives a poor grade, he may “go Columbine”? What if an abortion protester talks about participating in a “war against abortionists”?

Supreme Court case law
The U.S. Supreme Court first addressed a true-threat case in Watts v. United States (1969). Robert Watts, a young African-American man, allegedly stated during a protest in Washington D.C.:

“They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.”

Prosecutors charged Watts with violating a federal law that prohibits threats against the president. Watts countered that his statement was a form of crude political opposition. A federal jury convicted Watts of a felony for violating the law and a federal appeals court affirmed his conviction. On appeal, the Supreme Court reversed, ruling that Watts’ statement was political hyperbole rather than a true threat.

“We agree with [Watts] that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President,’” the Court wrote in a per curiam opinion. “Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.”

Unfortunately, the Court in Watts failed to define what constitutes a true threat. Other courts considering true-threats cases have focused on certain elements of Watts, including: (1) the fact that the comments were made accompanying a political debate; (2) the conditional nature of the threat; and (3) the context of the speech, as apparently several listeners laughed after Watts spoke.

The Supreme Court next addressed true threats, though not directly, in another case with connections to the civil rights movement. In NAACP. v. Claiborne Hardware (1982), the Court unanimously reversed a finding that Charles Evers and the NAACP could be found civilly liable for speech advocating the boycott of certain white-owned businesses. Evers, field secretary for the NAACP in Mississippi, had given impassioned speeches encouraging fellow African-Americans to participate in the boycott. He made some highly charged statements, such as “If we catch any of you going in any of them racist stores, we're gonna break your damn neck.”

The Court found that Evers’ comments did not constitute fighting words, incitement to imminent lawless action or a true threat. It concluded that “Evers’ addresses did not exceed the bounds of protected speech.” While most of the analysis centered on whether Evers’ speech incited imminent lawless action, the case added to the Watts legacy that charged political advocacy is unlikely to rise to the level of a true threat. Unfortunately, it provided little guidance for determining whether speech constitutes a true threat.

“Claiborne Hardware is one of the most difficult cases to analyze,” wrote Stanford Law Professor Jennifer Rothman in her incisive 2001 article, “Freedom of Speech and True Threats” for the Harvard Journal of Law and Public Policy. “The decision itself is fairly opaque about its basis for determining that Evers’ speech did not constitute true threats.”

The high court more directly addressed true threats in a pair of Virginia cross-burning cases collectively known as Virginia v. Black(2003). One case involved a Ku Klux Klan leader named Barry Elton Black, who burned a cross in a field with the permission of the property owner. The other case involved two individuals who burned crosses in the yard of a neighboring African-American family. In separate cases that became consolidated, the Supreme Court examined the constitutionality of a Virginia state law that prohibited “any person or group of persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.”

Another provision of the law created a presumption that all cross-burnings were done with an intent to intimidate. In its decision, the Court upheld the bulk of the Virginia law, but invalidated the section that provided that all cross-burnings were presumed to be intimidating.

In deciding the case, Justice Sandra Day O’Connor in her plurality opinion offered a definition of true threats:

“‘True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”

She added, “intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

Lack of clarity
Many legal experts say that the Supreme Court’s true-threat cases have failed to provide clear guidance for lower courts. Commentator Paul T. Crane in a 2006 Virginia Law Review article “True Threats and the Issue of Intent,” wrote that “in providing a definition, the Court created more confusion than elucidation” and “spawned as many questions as answers.” Duke law professor Steven Gey, in a 2005 article for the Notre Dame Law Review, “A Few Questions About Cross Burning, Intimidation and Free Speech,” said: “Justice O’Connor’s opinion in the cross burning case borders on the incoherent.”

Many lower courts have struggled with the Court’s decision in Black because it is unclear what level of intent is necessary for a speaker’s utterance to be considered a true threat. In other words, must a speaker subjectively intend to intimidate or threaten others? Or is it sufficient if the speaker makes a comment that a recipient reasonably believes is a threat? Should true threats be interpreted under a “reasonable speaker” or “reasonable recipient” standard? Is there a difference between a true threat and intimidation or is intimidation a special subset of the more general category of true threats?

Lower courts struggle to define true threats and apply the Court’s precedents from Watts and Black. Some courts have determined that in order for speech to constitute a true threat, the speaker must subjectively intend to threaten someone. This doesn’t mean that the speaker must actually intend to carry out the threat. It does mean, however, that the speaker must subjectively intend that his or her comments be interpreted as a true threat.

A three-judge panel of the 9th U.S. Circuit Court of Appeals adopted this view in United States v. Cassel (2005), a case involving a man who allegedly intimidated prospective buyers to dissuade them from purchasing a plot of land next to his own. Jury instructions in his case provided: “Intimidation is to make a person timid or fearful through the use of words and conduct that would put an ordinary, reasonable person in fear or apprehension for the purpose of compelling or deterring legal conduct of that person.”

For the 9th Circuit, the jury instructions were constitutionally deficient because they did not require the government to prove that the defendant made the comments with the intent to intimidate the prospective buyers.

However, other courts interpret Virginia v. Black as requiring only that the speaker knowingly intended to communicate to another person. These courts do not require that it be proven that the speaker subjectively intended to threaten someone. Rather, they focus on whether there was an intent to communicate and whether an objective or reasonable recipient would regard it as a serious expression of harm. For example, a three-judge panel of the 5th Circuit in Porter v. Ascension School District (2004) wrote:

“Speech is a true threat and therefore unprotected if an objectively reasonable person would interpret the speech as a serious expression of an intent to cause a present or future harm. The protected status of the threatening speech is not determined by whether the speaker had the subjective intent to carry out the threat; rather, to lose the protection of the First Amendment and be lawfully punished, the threat must be intentionally or knowingly communicated to either the object of the threat or a third person.”

Even courts that agree there is no subjective-intent requirement disagree over how to apply the objective requirement. Courts disagree whether the objective test should be applied from the perspective of a reasonable speaker (the person allegedly making the threat or who should have known that his words could be interpreted as threatening) or the reasonable recipient (the intended target). Some courts avoid the labeling of reasonable speaker or recipient and simply apply a reasonable-person standard.

Still other courts employ a multi-factor test to determine whether speech constitutes a true threat. In United States v. Dinwiddie (1996), the 8th Circuit examined whether an abortion protester engaged in making true threats in violation of the Freedom of Access to Clinics Entrances Act (FACE). The court applied a test consisting of what came to be known as the “Dinwiddie factors”:

• The reaction of the recipient of the threat and of other listeners.
• Whether the threat was conditional.
• Whether the threat was communicated directly to its victim.
• Whether the maker of the threat had made similar statements to the victim in the past.
• Whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.

Conclusion
True-threat jurisprudence remains a muddled mess. Courts often have trouble determining whether violent expression should be evaluated under the “incitement to imminent lawless action” standard or under a true-threats line of analysis.

In a high-profile case involving a Web site known as the Nuremberg Files, which listed abortion providers with lines drawn through names if they were killed, a three-judge panel of the 9th Circuit said Brandenburg v. Ohio (1969) and its requirement of imminency must be applied. That is, a threat must be explicit and likely to cause “imminent lawless action.” The panel ruled that neither was the case and that the speech on the Web site was protected. But, the full panel of the 9th Circuit eventually ruled 6-5 that the case was more properly evaluated under true-threat analysis and that the Web site did in fact constitute a true threat. In 2003, the U.S. Supreme Court declined to review this ruling.

Lower courts are far from consistent in how they determine whether speech is truly threatening. Some courts interpret Supreme Court case law to require subjective intent, while others apply different versions of an “objective” test as some form of general intent to communicate.

The Supreme Court’s most recent foray into the thickets of true threats in Virginia v. Black seemingly raises as many questions as it provides answers. Particularly interesting will be whether intimidation becomes a synonym for, or a subset of, true threats. It may take further clarification from the Supreme Court to resolve these thorny questions and provide more guidance on when speech crosses the line from protected speech into unprotected threats or intimidation.